Marriage of Bukacek, In re
| Decision Date | 21 December 1995 |
| Docket Number | No. 95-162,95-162 |
| Parties | In re MARRIAGE OF Ann Marie BUKACEK, Petitioner and Respondent, and Edward Paul Janes, Respondent and Appellant. |
| Court | Montana Supreme Court |
L. Charles Evans, Libby, for respondent.
Petitioner Ann Marie Bukacek filed a petition for dissolution of her marriage to Edward Paul Janes, in the District Court for the Nineteenth Judicial District in Lincoln County. Following numerous hearings, the District Court entered its decree in which it awarded the parties joint custody of their four minor children and designated Ann the primary custodian. The court also divided the couple's marital estate, provided for child support, and ordered Ann to pay maintenance to Ed for one year. Ed appeals from the District Court's decree. We affirm the District Court.
There are five issues presented on appeal:
1. Did the District Court have continued jurisdiction after stating at the initial proceeding that the dissolution was granted?
2. Did the District Court abuse its discretion when it enforced that part of the couple's settlement agreement which related to property division, but refused to enforce provisions related to child custody, child support, and maintenance?
3. Did the District Court adequately consider the children's preferences when it made its child custody determination?
4. Did the District Court abuse its discretion when it determined that Ann should have primary residential custody of the children?
5. Did the District Court demonstrate bias which prevented it from impartially deciding the issues presented?
Ann and Ed were married in Lane County, Oregon, on April 26, 1978. Soon afterward, Ann expressed a desire to continue her education. With Ed's support, she earned her undergraduate degree and enrolled in medical school. In 1989, Ann completed a three-year medical residency.
Ann and Ed had four children while Ann was pursuing her medical education. During that time, Ed was not employed and served as the homemaker and primary caretaker for the children. Although Ann devoted a great deal of her energy to her studies and her residency, she shared as much as possible in child care and housekeeping responsibilities.
In 1989, Ann and Ed and their four children moved to Redmond, Oregon, where Ann worked as a physician with a local hospital and established a private practice. Ed remained the children's primary caretaker during this time.
The parties and their children moved to Libby, Montana, in December 1991. Ann and Ed separated immediately, and Ann filed a petition for dissolution with the District Court. Pursuant to a written settlement agreement, Ann appeared before the court for entry of a decree by default on February 24, 1992. The District Court expressed concern about support provisions in the agreement, and recommended that tax consequences be considered, and that further advice be considered. The court did, at that time, indicate that the dissolution would be granted.
After the first hearing, the parties were unable to reach an agreement on the issues of child custody and support. Although Ann first agreed that Ed should have primary residential custody of the children, she later became concerned about his emotional stability and hostility. By the time of trial in September 1993, each party sought primary residential custody of the children.
On December 20, 1994, the District Court entered a decree of dissolution. The court awarded joint custody of the four children to both parties, and designated Ann the primary residential parent. The court also approved the distribution of marital property set forth in the parties' original February 1992 property settlement agreement, relieved Ed of child support payments for one year, and ordered Ann to pay maintenance to Ed for one year.
Did the District Court have continued jurisdiction after stating at the initial proceeding that the dissolution was granted?
A decree of dissolution is final when entered subject to the right of appeal. Section 40-4-108(1), MCA. Ed contends that the District Court's oral statement during the initial hearing to the effect that the dissolution was granted had the effect of a final decree and divested the court of further authority to act.
The term "decree" includes the term "judgment." Section 40-4-103(4), MCA. The Montana Rules of Civil Procedure define "judgment" as "the final determination of the rights of the parties in an action or proceeding ... and includes a decree...." Rule 54(a), M.R.Civ.P. (emphasis added). Although the District Court in this case purported to orally grant the parties' dissolution at the initial hearing, that statement was by no means a "final determination" of the couple's rights. As the court stated at that time the issues of child custody, support, and maintenance had yet to be decided. Furthermore, the court later acknowledged that it had no jurisdiction to grant a dissolution without resolving those related issues. In a written memorandum, the court stated:
During the course of the hearing which was held on February 22, 1993, the Court advised that it would prepare and enter a decree of dissolution. However, the Court has subsequently determined that it is without jurisdiction to enter the decree of dissolution at this time. See 40-4-104(d) MCA and In re Marriage of Skinner, , 783 P.2d 1350 (Mont.1989).
We therefore conclude that the court's statement at the initial hearing to the effect that the parties' marriage was dissolved did not divest it of jurisdiction to act further in this case.
Did the District Court abuse its discretion when it enforced that part of the couple's settlement agreement which related to property division, but refused to enforce provisions related to child custody, child support, and maintenance?
When a district court determines the conscionability of a marital and property settlement agreement it
engage[s] in discretionary action which cannot be accurately categorized as either a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed by this Court absent an abuse of discretion by the lower court.
In re Marriage of Caras (1994), 263 Mont. 377, 380-81, 868 P.2d 615, 617 (quoting In re Marriage of Hamilton (1992), 254 Mont. 31, 36, 835 P.2d 702, 704-05) (alteration in original).
Ed contends that the District Court abused its discretion when it found that the terms of the parties' settlement agreement which pertained to child custody, support, and maintenance were unconscionable. He further contends that if the agreement was unconscionable, the court should not have approved the division of property included in the agreement.
Section 40-4-201(2), MCA, provides:
In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
In In re Marriage of Simms (1994), 264 Mont. 317, 325-26, 871 P.2d 899, 904, we clarified the district court's obligations:
In short, in a marriage dissolution case ... [t]he district court ... is not bound by the parties' oral or written agreements or stipulations in matters of custody, support and visitation (the applicable statutory criteria always being paramount), and is bound on the matters of property division and maintenance only to the extent that the parties' agreement is reduced to writing and is found, after review, to be not unconscionable.
In this case, the parties' written agreement settled the distribution of the couple's real and personal property; designated Ed as the children's primary residential custodian for so long as he lived in the same city as Ann; required Ann to pay Ed's residential expenses of up to $1000 per month; and provided that Ed would receive one-half of Ann's disposable income for ten years.
As provided in Simms, the District Court was not bound by the agreement's provisions related to child custody and support, and was bound by the provisions regarding property division and maintenance only to the extent that the court found them to be conscionable.
We conclude that the District Court did not abuse its discretion when it held that the maintenance award was unconscionable. The court alerted the parties to its concerns about the maintenance provision at the first hearing. At that time, the court indicated that it would not sign the agreement until it was modified and reviewed by a certified public accountant. The court's concerns were well-founded. The settlement agreement did not indicate whether the monthly payments to Ed were child support or maintenance, and did not set forth how the monthly figure for Ann's disposable income would be determined. Furthermore, the court's request that the agreement be re-written was authorized pursuant to § 40-4-201(3), MCA, which provides that:
If the court finds the separation agreement unconscionable, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property, maintenance, and support.
The parties did not submit a revised agreement which addressed the court's concerns about the maintenance provision. Therefore, since the court held that the original agreement was unconscionable, it was free to make its own order with regard to the issue of maintenance.
We further hold that the District Court did not abuse its discretion when it held that the written property settlement was consc...
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